Bobeck Real Estate Co. v. Frontier N. Inc.

• Decision Date: 31 July 2015
• Docket Number: Cause No. 1:14–CV–93–PRC.
• Citation: 120 F.Supp.3d 845
• Parties: BOBECK REAL ESTATE COMPANY, INC., Plaintiff, v. FRONTIER NORTH INC. f/k/a Verizon North, Inc. f/k/a GTE North, Inc. f/k/a General Telephone Company of Indiana, Inc., Defendant.
• Court: U.S. District Court — Northern District of Indiana

120 F.Supp.3d 845

BOBECK REAL ESTATE COMPANY, INC., Plaintiff,

v.FRONTIER NORTH INC. f/k/a Verizon North, Inc. f/k/a GTE North, Inc. f/k/a General Telephone Company of Indiana, Inc., Defendant.

Cause No. 1:14–CV–93–PRC.

United States District Court, N.D. Indiana, Fort Wayne Division.

Signed July 31, 2015.

Gene R. Leeuw, John M. Mead, Leeuw Oberlies & Campbell PC, Indianapolis, IN, for Plaintiff.

Karen T. Moses, Kevin J. Mitchell, Faegre Baker Daniels LLP, Fort Wayne, IN, for Defendant.

OPINION AND ORDER

PAUL R. CHERRY, United States Magistrate Judge.

This matter arises from a dispute between a landlord Plaintiff and the Defendant, a former commercial tenant. Plaintiff alleges in the Complaint that Defendant breached the maintenance and repair obligations under the lease by committing waste on the premises, neglecting necessary maintenance, and allowing the premises to deteriorate in several respects. Defendant seeks partial summary judgment on construction of the lease and summary judgment on damages.

Before the Court are Frontier North Inc.'s Motion for Summary Judgment [DE 27], filed by Defendant Frontier North Inc. f/k/a Verizon North, Inc. f/k/a GTE North, Inc. f/k/a General Telephone Company of Indiana, Inc. ("Frontier") on April 1, 2015; Frontier North, Inc's Motion to Exclude Plaintiff's Expert Testimony [DE 29], filed by Frontier on April 1, 2015; Frontier's Motion to Strike Inadmissible Evidence Submitted by the Plaintiff in Opposition to Frontier's Motion for Summary Judgment [DE 39], filed by Frontier on May 22, 2015; and Frontier's Motion to File Exhibit to Its Reply in Support of Its Motion for Summary Judgment Under Seal [DE 43], filed by Frontier on May 22, 2015. All motions are fully briefed and ripe for ruling.¹

PROCEDURAL BACKGROUND

On February 21, 2014, Plaintiff filed a Complaint in the Allen County, Indiana, Circuit Court against Frontier Communications Corporation and Verizon Communications, Inc. f/k/a GTE North Inc. f/k/a General Telephone Company of Indiana, Inc. On March 19, 2014, Plaintiff filed an Amended Complaint, naming as defendant Verizon North, Inc. f/k/a GTE North Inc. f/k/a General Telephone Company of Indiana, Inc. The action was removed to this Court on March 24, 2014, and an Answer was filed on March 28, 2014.

On June 25, 2014, Plaintiff filed a Second Amended Complaint with leave of Court, naming as defendant Frontier North Inc. f/k/a Verizon North, Inc. f/k/a GTE North, Inc. f/k/a General Telephone Company of Indiana, Inc. ("Frontier"). Plaintiff alleges that, in 1982, Plaintiff and Frontier's predecessor General Telephone Company of Indiana, Inc. entered into a Real Estate Lease ("Lease"). Plaintiff alleges that Frontier breached the Lease terms relating to maintenance and repair of the Premises, resulting in damages to Plaintiff for deferred maintenance, restoration, and repairs. Plaintiff alleges that it is unable to lease the Premises to a new tenant until the Premises have been properly repaired and restored. Plaintiff seeks damages in an amount necessary to repair and restore the Premises and for the loss of rent income as well as attorney fees and costs. Frontier filed an Answer to the Second Amended Complaint on June 26, 2014.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "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). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c) ). "[S]ummary judgment is appropriate—in fact, is mandated—where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the nonmoving party." Dempsey v. Atchison, Topeka & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotations omitted).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 ; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply " ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325, 106 S.Ct. 2548 ; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994) ; Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has "produced sufficient evidence to support a conclusion that there are no genuine issues for trial," then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum–Hill Assoc., 914 F.2d 107, 110–111 (7th Cir.1990) (citations omitted); see also Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir.1993).

Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed.R.Civ.P. 56(e) ; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Rule 56(e) provides that "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it...." Fed.R.Civ.P. 56(e)(2), (3) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts," but must "come forward with ‘specific facts showing that there is a genuine issue for trial .’ " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e) ).

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.2009) ; NLFC, Inc. v. Devcom Mid–Am., Inc., 45 F.3d 231, 234 (7th Cir.1995). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505.

MATERIAL FACTS

On June 4, 1982, Plaintiff and General Telephone Company of Indiana, Inc. ("GTE") entered into a Real Estate Lease ("Lease") for property described as 3301 Wayne Trace in Fort Wayne, Indiana, for a term ending May 31, 2008. GTE is a predecessor of Defendant Frontier; Frontier and its predecessors are collectively referred to herein as "Frontier." The maintenance provision of the Lease provides that Frontier agrees

at all times during the term of this Lease, at its own expense: To maintain all existing and hereinafter constructed or established improvements on the Demised Premises, including all parking areas, grounds and walkways in good and safe condition, it being the intent and agreement of the parties hereof that all repairs that may be required, both interior and exterior (including lawn and landscape area maintenance and repair), structural and non-structural, ordinary and extraordinary, foreseen and unforeseen, shall be the obligation of Lessee so that Lessor shall in no event be required to make any repairs or replacements to the Demised Premises; To paint and redecorate the exterior and interior of any buildings or other improvements on said Premises when necessary or when Lessee desires to do so, and to maintain said Premises in as good condition as when first occupied, save and except for ordinary wear and tear, damage intentionally caused by Lessor, its agents, employees, visitors, subtenants and assigns; To provide for the routine servicing and maintenance of all machinery and equipment on said Premises in accordance with sound maintenance practices, and, when any items of machinery or equipment become wholly worn from normal use, to cause such repairs or replacements to be made of such machinery or equipment as may be required for its operation[.]

(Def. Br., Ex. 2, ¶ 3(e)) (emphasis added).

The surrender provision of the Lease requires Frontier "to return and surrender the Demised Premises of Lessor at the termination of the term of this Lease, in as good or the same condition as when...