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Appeals court reverses decision for lessee of contaminated industrial building

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A company that leased a building with environmental contamination was improperly granted summary judgment over the environmental issues and claims of breach of contract, the Court of Appeals ruled Monday.

The appeals court reversed a Marion Superior Court 10 decision in Mitzi Bosley v. Niktob, LLC, Design Industries, Inc., Peg Rail, Inc., and Originnovations, Inc. 49A04-1111-PL-599, in which Niktob LLC was granted summary judgment against owner Mitzi Bosley, who had sued to evict the company when its lease expired, claiming unpaid rent.

Niktob previously had brought a claim against Bosley in Marion Superior Court 7, environmental court, and the appellate panel in a six-page ruling said that the nearly verbatim claim was repeated in its counterclaim when Bosley sued to evict Niktob.

Superior Court 10, the ejectment court, rejected Bosley’s motion to dismiss Niktob’s counterclaim and granted summary judgment in favor of Niktob.

“Indiana Trial Rule 12(B)(8) permits the dismissal of an action when “[t]he same action [is] pending in another state court of this state,” Judge Melissa May wrote in a unanimous opinion.

“NIKTOB’s counterclaim in the ejectment action should have been dismissed, and summary judgment for NIKTOB on the counterclaim issues was therefore improper. We accordingly reverse,” May wrote.   

 

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